High Court Amendment Rules (No 2) 1994

Note

These rules are administered in the Department of Justice.

PURSUANT to section 51C of the Judicature Act 1908, Her Excellency the Governor-General, acting by and with the advice and consent of the Executive Council, and with the concurrence of the Right Honourable the Chief Justice and at least two of the other members of the Rules Committee (of whom at least one was a Judge of the High Court), hereby makes the following rules.

1Title and commencement

(1)These rules may be cited as the High Court Amendment Rules (No 2) 1994, and shall be read together with and deemed part of the High Court Rules from time to time set out in Schedule 2 to the Judicature Act 1908 (hereinafter referred to as the High Court Rules).

“(xviii)Sections 92, 118, 119, 120, and 152 of the Property Law Act 1952:

“(xix)The Protection of Personal and Property Rights Act 1988:

“(xx)The Reciprocal Enforcement of Judgments Act 1934:

“(xxi)Section 44C(2) and (8) of the Securities Act 1978:

“(xxii)Section 76 of the Trustee Act 1956:

“(b)Any originating proceeding for contempt of Court:

“(c)Any originating proceeding for relief against forfeiture for nonpayment of rent:

“(d)Any application for directions by—

“(i)A liquidator; or

“(ii)A receiver; or

“(iii)A judicial manager appointed under Part 1A of the Life Insurance Act 1908; or

“(iv)A statutory manager appointed under the Corporations (Investigation and Management) Act 1989, or

“(v)A statutory manager appointed under the Reserve Bank of New Zealand Act 1989

“(e)Any other proceeding that the Court, in the interests of justice, permits to be commenced by the filing of an originating application.

“(2)Subject to Part XIA, this Part applies to any application to the Court under section 31 or section 32 or section 33 or section 41 of the Patents Act 1953.

“(3)The Registrars (not being Deputy Registrars) for the time being exercising their office at the registries of Auckland, Hamilton, Rotorua, Napier, Palmerston North, Wellington, Christchurch, and Dunedin shall have for the purposes of this Part the jurisdiction and powers of the Court in Chambers conferred by section 13(1) of the Chattels Transfer Act 1924 but only in respect of the extension of time for the registration of an instrument or of an affidavit of renewal of an instrument.

“(4)The provisions of rules 272 to 275 shall apply to the exercise of the jurisdiction conferred by subclause (3).”

5Death, etc., of Judge before judgment

The High Court rules are hereby amended by revoking rule 543, and substituting the following rule:

“543

“(1)Where a Judge who has signed a judgment or reasons for judgment dies or otherwise becomes incapable before the judgment is given or the reasons are delivered, any other Judge or the Registrar may give that judgment or deliver those reasons.

“(2)Where subclause (1) does not apply and a Judge who is sitting without a jury, as one of a Court comprising 3 or more Judges, on the trial of any proceeding or issue,—

“(a)Dies or otherwise becomes incapable of giving judgment after the hearing has been completed; and

“(b)A majority of the number of Judges who constituted the Court when the trial began concur in the decision on the proceeding or issue,—

“that decision shall be the judgment of the Court and may be given accordingly.

“(3)Where neither subclause (1) nor subclause (2) applies and a Judge who is sitting without a jury on the trial of any proceeding or issue dies or otherwise becomes incapable of giving judgment, the proceeding or issue shall be retried.

“(4)Where a Judge sitting with a jury on the trial of any proceeding or issue dies or becomes incapable of acting for any other reason after the jury has retired to consider its verdict and before judgment has been given, any other Judge—

“(a)May give any further directions required by the jury; and

“(b)May take the verdict and give judgment thereon or may discharge the jury without verdict; and

“(c)May generally do all such things necessary up to and including the sealing of judgment in the proceeding or issue in the same way as the Judge presiding at the trial might have done had that Judge not died or become incapable of acting.

“(5)Where a Judge sitting with a jury on the trial of any proceeding or issue dies or becomes incapable of acting for any other reason before the jury has retired to consider its verdict, another judge or the Registrar shall discharge the jury and order a new trial.

“(6)Nothing in this rule limits the provisions of section 25A of the Acts Interpretation Act 1924.”

6Power to appoint interim liquidator

“700W

“(1)Where a proceeding for putting a company into liquidation has been commenced by the filing of a statement of claim under rule 700C(1), the plaintiff and any person entitled to apply to the Court for the appointment of a liquidator under section 211(2)(c) of the Companies Act 1955 or section 241(2)(c) of the Companies Act 1993, as the case may be, may apply to the Court for the appointment of an interim liquidator.

“(2)If, on an application under subclause (1), the Court is satisfied, upon proof by affidavit, that there is sufficient ground for the appointment of an interim liquidator, it may make the appointment, and may limit the rights and powers of the interim liquidator in such manner as it thinks fit.”

7Affidavit of service

(1)Schedule 1 to the High Court Rules is hereby amended by revoking form 16 (as substituted by rule 23 of the High Court Amendment Rules 199311), and substituting the form 16 set out in the Schedule to these rules.

8Statement of claim in proceeding for order under section 209ZC of Companies Act 1955 or section 174 of Companies Act 1993

Schedule 1 to the High Court Rules is hereby amended by omitting from the second paragraph 3 of form 64B (as substituted by rule 29 of the High Court Amendment Rules 199412) the word “Act”, and substituting the word “act”.

9Affidavit of service in winding-up proceeding

Schedule 1 to the High Court Rules is hereby further amended by revoking form 64H (as substituted by rule 29 of the High Court Amendment Rules 199413), and substituting the form 64H set out in the Schedule to these rules.

ScheduleNew forms 16 and 64H substituted in Schedule 1 to High Court Rules

Form 16Affidavit of service

(General heading—Form 1)

I, [Full name], of [Place of residence], [Occupation], swear: 1. I did on day, the day of 19 , serve the above-named defendant, [Full name], with the following documents: [Describe each document served, eg, statement of claim and notice of proceeding. If under rule 196(2) of the High Court Rules, a copy of any document served is not to be annexed to the affidavit, the description of the document—(a) Must be sufficient to enable the document to be identified; and(b) Must include the date of the document (if the document bears a date)]. 2. I served the documents on the above-named defendant at [Place] in New Zealand by delivering the documents personally to the defendant [or as the case may be]. *3. True copies of the documents served are annexed hereto and marked A and B. *Delete if inapplicable Signature of Deponent: Sworn at this day of 19 , before me— (Deputy) Registrar. A solicitor of the High Court of New Zealand.

Form 64HAffidavit of service

(General heading—Form 1)

I, [Full name], of [Place of residence], [Occupation], swear: *1. I, did on day, the day of 19 , serve the defendant company with— (a) The statement of claim in the above-mentioned proceeding; and (b) The verifying affidavit made by [Full name] and dated the day of 19 ; and (c) The notice of proceeding dated the day of 19 . OR *1. I, did on day, the day of 19 , serve the defendant company with the defendant company with a statement of claim, verifying affidavit, and notice of proceeding (true copies of which are hereunto annexed and marked A, B, and C respectively). 2. I served the documents on the defendant company at [Place] in New Zealand by [Specify the method by which service was effected]. Signature of Deponent: Sworn at this day of 19 , before me— A solicitor of the High Court of New Zealand. *Delete if inapplicable

MARIE SHROFF,

Clerk of the Executive Council.

Explanatory note

This note is not part the rules, but is intended to indicate their general effect.

These rules, which come into force on 1 November 1994, amend the High Court Rules.

Rule 3 adds a new subclause (2) to rule 196 (which relates to proof of service).

The new subclause provides that where the service of a document is proved by affidavit, it shall not be necessary, unless the Court otherwise directs, for a copy of the document to be annexed to the affidavit if—

(a)Either the original of the document or a copy of the document has, at the time of service, been filed in the office of the Court; and

(b)The affidavit contains a description of the document that—

(i)Is sufficient to enable the document to be identified; and

(ii)Includes the date of the document (if the document bears a date).

Rule 4 re-enacts (without change in its effect) rule 458D of the High Court Rules (which deals with the application of Part 4A (Originating Applications)).

Rule 5 revokes rule 43 (which relates to the death, etc., of a Judge before judgment), and substitutes a new rule. The new rule reflects the changes made to section 25A of the Acts Interpretation Act 1924 by section 3 of the Acts Interpretation Amendment Act 1994.

Rule 6 re-enacts (without change in its effect) rule 700W of the High Court Rules (which confers power to appoint an interim liquidator).

Rule 7 (which is consequential on the amendment made to rule 196 of the High Court Rules by rule 3 of these rules) prescribes a new form 16 (a form of affidavit of service).